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FAMILY COURT OF AUSTRALIA 3 Innovation With SRLs the increasing reality for the Court, the project team developed a vision for the delivery of Court services which reflected this reality into the future. The present adversarial system is fraught with difficulties for selfrepresenting litigants. One of the questions for the team to address was, "how will the Family Court evolve to meet the changing needs of the community, while at the same time preserving essential elements, which ensure balance, fairness and stability of decision making within our society, and the Rule of Law?" The Visioning Project was thus developed, under the umbrella of the SRL project. 3.1 Unbundling Legal Services Because it has the capacity to extend access to legal advice from both legal aid and private practitioners the team actively considered the concept of ‘unbundling’ legal services. ‘Unbundling’ enables the provision of legal assistance and support at various stages throughout proceedings. Limited legal assistance can then be applied most effectively and strategically. SRLs could be assisted by targeted legal advice and assistance as they progress through the Court. Availability of ‘unbundled’ services would increase access to advice and possibly targeted representation. Some legal aid bodies and the legal profession are resistant to this idea due to concerns about the impact of professional liability. Professor Dewar wrote a short paper 9 on the issues involved and a proposal for addressing the main concerns. In the paper he identifies civil liability risks and ethical issues as the two most cited obstacles to providing unbundled legal services. He suggests that the solutions to these problems in Australia lie with state and territory legislatures and with state and territory professional bodies. Possible solutions include: ■ ■ statutory immunity for work not covered by retainer amendment of ethical rules Given that the issues raised have an impact beyond the jurisdiction of the Family Court, the Chief Justice wrote to the Attorney-General, providing the paper and inviting his further consideration. The Attorney-General’s Department has advised it is actively considering this matter. 22 9 Professor John Dewar, Unbundling (or ‘discrete task representation’): Ethical and liability issues, A brief discussion paper, 2002.
Self-represented Litigants ~ A Challenge: PROJECT REPORT 3.2 The Visioning Project/Workshop The Visioning Workshop was a structured consultation process aimed at enabling the Court to develop a framework for gradual incremental change, towards a system that is more accessible to SRLs. It was held in Melbourne in April 2002. The goals of the workshop were to: ■ ■ ■ ■ ■ identify important and useful features of adversarial and inquisitorial systems critically examine those elements which are crucial to fairness encourage the abandonment of the unnecessary or unimportant to achieving justice or fairness encourage the critical evaluation and the sensible development of factors which will benefit self-representing litigants supporting, informing and helping litigants, and recognising their right to a fair go The two-day workshop, facilitated by the Honourable Fred Chaney was attended by: ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ The Hon Justice Geoff Davies from the Queensland Court of Appeal Associate Chief Judge David Carruthers from the District Court in New Zealand Associate Professor Kathy Mack from Flinders University, South Australia Professor John Braithwaite from the Research School of Social Science at the Australian National University, ACT Ms Sarah Mansfield from Victoria Legal Aid, Victoria Mr Tim Mulvany an experienced family law practitioner and child representative, Victoria Ms Zoe Rathus from the Women’s Legal Service, Qld Judicial Registrar Dianne Smith from the Family Court’s Brisbane Registry Professor John Dewar from Griffith University and consultant to the SRL project, and Justice John Faulks, Project Leader, ACT 23
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